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joel hoffman

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  1. Very interesting case and decision. In addition, During a period in 1982-1983, I worked in a Civil Works construction field office with Paul Perkins, one of Lodge’s claims consultants. He was assigned to one of our Military Construction Area Offices in the early 90’s after I returned from Overseas to an assignment at the District HQ. He left federal service to work as a claims consultant. No comment, except HAH!
  2. Mike, We probably need to get some clarification from you concerning the context of your questions and concerns. Is your proposal for a new contract or an action under an existing one? So, if this is a proposal for a new contract and the PCO “invoked” the DFARS clause for use in a competitive acquisition after only one proposal was received, the PCO (who you apparently haven’t previously worked with) probably notified you that you are the sole proposer and they need you to provide cost and pricing information, more detailed breakdowns and subcontractor cost or pricing and/or breakdowns. So, are you asking if there could be a pre-negotiation conference to establish responsibilities and expectations, I’d say yes, you could request that and I see no reason why the government should not agree to that - but you’d have to ask, since it may not be their usual business practice. A pre-negotiation conference should also certainly help allay suspicions about working with an unfamiliar government team. It can also be useful to clarify scope or requirements questions and explain aspects of your proposal. I used to participate occasionally in pre-proposal and pre-negotiation conferences. As for “partnering”, as practiced By the USACE, that is a voluntary, post award practice. Carl Culham provided a link to the USACE Partnering guidelines. Good luck!
  3. Having participated in Alpha Contracting on a large construction task order on a multibillion dollar, long term CP, IDIQ Systems Contract for design/build/systemization/pilot operations/operations/closure of a plant to demilitarize Chemical weapons, the circumstances you just described don’t appear to be “Alpha Contracting”. However, I would suggest that the parties engage in some type of “partnering process” , if not too late, that might allay your suspicions and concerns. Your above quote is one of the important aspects of the “partnering process” that the Army Corps of Engineers is required to offer as a voluntary, mutual process on all construction contracts. Partnering continues throughout contract performance after the initial expectations and responsibilities are laid out.
  4. My point is that the required “GSA prices” include an amount for the IFF payment to GSA even though not applicable to another agency’s contract and, unless the agency ID/IQ matches the GSA Schedule provisions for discounting and most favorable customer pricing, etc. the GSA schedules are likely a better deal… Edit: However, that’s neither here nor there. The OP’s question or concern, as a potential contractor has been addressed. Artimpa didn’t elaborate on the pricing terms and conditions in the current RFP. In theory, Artimpa’s “GSA prices” will include amounts for IFF anyway.
  5. It is interesting to note that the “GSA rates” should include the the amount of the IFF that would otherwise be paid to GSA. So how are those the “best rates”? It seems they would be inflated by the amount of the IFF, even though they won’t be paid to the GSA. And there are circumstances where the GSA customer can seek discounts. The other agency isn’t thinking this idea through, if they think that pricing based upon the GSA rates are “the best rates” available.
  6. It’s not a change order within scope. See above reasoning.
  7. I didn’t go back now to re- read the initial conversation but perhaps readers and posters here aren’t considering the impact to the company and to its employees here. The government would be mandating that most if not all of a contractor’s employees anyway directly or indirectly involved in a government contract or contracts, whether on the government installation or not, be vaccinated and follow the government’s ever evolving policies - or they might not be be able to work for the contractor. This includes permanent employees on or off the installation. That could be very disruptive to a company and to its employees. The impacts for both company and employees could be serious, extending beyond the instant contract(s). If company employees refuse to be vaccinated and either quit or are terminated… I don’t think that unilaterally directing such a possibly drastic “change” after award is within the scope of the agreed contract terms.
  8. Someone should tell the Social Security Administration about that one! Their offices have been closed to “customers” since 2020 due to COVID 19 and their “customers” may well be on hold for long periods; if nobody answers within a period, varying from 20-60 minutes, the phone cuts off. I have spent several weeks over several months trying to assist a friend apply for Disability Retirement and to interact with a live person. He even had a professional advocacy person from a local hospital helping him. He is disabled now by COPD He was also injured on a construction site last spring, had shoulder surgery for that and has been in rehab on workman’s comp. The professional assistance provider has been sporadically successful in reaching someone but SSA often missed scheduled teleconferences. And some of the information provided was dead wrong, vastly complicating and delaying the process.
  9. I question whether EO1455 has any relevance to your task order. It was issued on Nov 18 and was published on Nov 23, which was only a month ago. Vern quoted the effective date and conditions and indicated that the FAR Council hasn’t published final revisions to the FAR to implement any clause. Did someone include the stated clause in the open task order solicitation before selection and award? Did the proposers have any opportunity to assess any effects of such a clause to their pricing or proposals before the closing date for submission? What “clauses to this effect” are in the awarded task order? Or is the task order competition/task order proposal request still open? If still open are you posing a hypothetical “what if “ delay scenario? Can you please clarify? Thanks.
  10. Agree. I don’t advise using the term “fraud” in communications with the government; rather advise of a “mistake”. Not enough info provided (that’s okay - don’t elaborate) to determine if it was internal fraud or if the company knew about the incorrect information when the rates were finalized. But do first get a lawyer before discussing with the government.
  11. It might be a FCA false claim. See, for example, https://www.justice.gov/sites/default/files/civil/legacy/2011/04/22/C-FRAUDS_FCA_Primer.pdf Don’t know which party you represent. Although the government would have to prove it, it might be beneficial for the contractor to voluntarily pay back any overcharged amounts. Check with legal counsel, regardless of which side you represent.
  12. Judge J. Larsen delivered the dissenting decision on pp 39-57. The dissent opinion is very compelling regarding certain aspects of the OSHA rule, in particular to rules beyond the workplace (e.g., OSHA’s authority is limited to workplace safety - not remotely, home based work). In addition, it addresses weaknesses in OSHA’s determination of the existence of “grave danger”. Looks like there may be grounds for appeal…
  13. I didn’t “assert” that a change (order) to add the requirement would “seem to be”out of scope. Read the definition of “assert”. “Seem to be “ or “seemingly be” is not an “assertion”. The Executive Order itself is being challenged by the Courts. I think that is factual. The Executive Order didn’t authorize, direct or suggest that the government could unilaterally mandate that contractors require employees to be vaccinated on existing tasks or on-going contracts, absent extensions, options, new work added, etc. I’m limiting my opinion to mandatory vaccinations here. Certainly, mandating safety procedures like masking and social distancing on federal job sites can reasonably be considered applicable. However, I doubt that the government can unilaterally mandate a company’s entire off-site workforce, including at home, remote employees to be vaccinated on such pre-existing contract efforts. Seems like you said it’s easy to make a case but questionable whether one could withstand a legal challenge…
  14. The EO didn’t make it mandatory for existing service contracts except for extensions or new work or new tasks. At any rate the Courts are attacking the mandates as an overextension of Biden’s authority.
  15. I had noticed several years ago during the Trump Administration that he had not revoked Obama’s Executive Order.
  16. It is basically a union vs. non-union construction industry political issue. Project Labor Agreements are very pro-union. Background -what they are and history from Bush 1 through Clinton: https://thetruthaboutplas.com/wp-content/uploads/2012/12/Congressional-Research-Service-Report-Project-Labor-Agreements-in-Federal-Construction-Contracts-AN-Overview-and-Analysis-of-Issues-08241999.pdf More detail about the ping pong policies from Bush 1 through Bush 2 and early Obama actions in 2009: https://thetruthaboutplas.com/2009/06/25/pla-archives-white-house-executive-orders-concerning-project-labor-agreements/amp/ Here is a good overall view of the recent history of PLA’s in Federal Construction, why much of the construction industry, including the ABC Associated Builders and Constructors (Open shop) and even the AGC Association of General Contractors (mostly union but some have both union and non-union Divisions) oppose the government mandating the use of PLAs on Federal construction projects. https://en.m.wikipedia.org/wiki/Project_Labor_Agreement The Biden administration is considering bolstering the use of PLAs beyond the current policy per campaign promises made by Candidate Biden in 2020. Source ENR: (subscribers only) https://www.enr.com/articles/50888-will-project-labor-agreements-grow-in-biden-administration
  17. Will do so when time to search for the various FAR changes permits. PLA’s only pertain to construction. Starting my daily duties right now.
  18. Adding the terms of the mandate to the statement of work -if applying it to existing tasks- would seem to be out of scope, not a change per the changes clause. I could see where the government could add the mandate to the statement of as a condition for issuance of future task orders. At any rate, a “change” in the contract’s terms and conditions would entitle the contractor to an equitable adjustment to applicable pricing and possibly to performance delays for any time and/or cost impacts, if you cite the Changes clause as the authority. Or, if not cited, but is a constructive change (i.e., the contractor considers it a change).
  19. If the subcontract doesn’t affect the established price(s) then I’d say the prime can acquire services however it deems fit. But if it does, then it affects how the government is acquiring the services and the contractor isn’t authorized to add a T&M component to what the government must pay for.
  20. Project Labor Agreements were another example of back and forth policy, although I think that Trump left it alone.
  21. What you are appear to be doing is adding a T&M component to the prime contract for commercial services, which has been formed as FFP. If the government is going to be billed for T&M services rather than the established contract terms and conditions, the contract is adding “acquisition of commercial [products? and/or?] services”. Then I feel that the government would have to agree and that the government should then require competition for acquisition of the T&M per 12.207(b). “12.207 Contract type. (a) Except as provided in paragraph (b) of this section, agencies shall use firm-fixed-price contracts or fixed-price contracts with economic price adjustment for the acquisition of commercial products or commercial services. (b) (1) A time-and-materials contract or labor-hour contract (see Subpart 16.6) may be used for the acquisition of commercial services when - (i) The service is acquired under a contract awarded using - (A) Competitive procedures (e.g., the procedures in 6.102, the set-aside procedures in Subpart 19.5, or competition conducted in accordance with Part 13);
  22. Note that simply breaking up an asteroid without altering its course might or might not avoid direct catastrophic hits of pieces that are too large to burn up in the atmosphere.
  23. A friend of ours when we lived in Huntsville, Is a NASA physicist at Marshall Space Center. As of 2007, Jason was assigned to the NASA project to detect, intercept and breakup or change the orbit of asteroids that were tracking toward earth. I Messengered him yesterday to ask if he is still assigned to that project. Hope he responds and can update me.
  24. I read the extended introduction. Fascinating! I ordered a copy for my son-in-law, who flies for United and who flew the MAX 9 before the fatal MAX8 crashes and the grounding. He also flew the McDonnell Douglas C-17 Globemaster III, the C5-B and, along with my daughter, flew Lockheed C-130 aircraft in the Air Force. I’ll read his copy next month when I go visit them.
  25. I merely answered your above question to me. As for an article, I already wrote two contract admin manuals with policy and procedures in the early and later 1990’s. I don’t have access to them any more and don’t have a desire or time to re-do it here. Some of the coverage included cost and price analysis for field overhead including characterization of costs as fixed, one-time, variable and semi-variable; home office G&A and branch office overheads including the bases and the overhead pools, allowable costs, etc.; unabsorbed overhead and the prerequisites, etc. (prior to the excellent coverage in 3rd Edition of Admin. of Govt. Contracts) ; special coverage of adjustments to G&A and direct costs for contractor owned equipment ownership, maintenance repairs, mechanics, M&R shops, etc. I also taught cost analysis classes in the early 90’s. Goodbye.
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